MORT COHEN, J.D.

For four decades, Mort Cohen has been a champion of the rights of
disadvantaged and marginalized individuals - people in psychiatric institutions, in
prisons and jails, and in nursing homes. Professor Cohen litigatedRiese v. St. Mary;s Hospital, the landmark
case which vindicated the right of persons in California facilities to refuse psychiatric
drugs. His efforts in a lawsuit filed byCalifornia
Advocates for Nursing Home Reform resulted in the promulgation of new statewide
regulations restricting the use of chemical and physical restraints on residents of
nursing facilities. Cohen's dedication through decades of litigation resulted in the
closure of a notorious San
Francisco jailand improvements in conditions at other area jails and prisons. In the
1970s, he represented defendants prosecuted by the government following the uprisings at
Attica and at Wounded Knee. The author of numerous books, manuals, and articles, Professor
Cohen has taught civil procedure and criminal law at Golden Gate University School of Lawfor over
30 years. He also lectures and leads discussions on the constitutional and statutory
rights of individuals with psychiatric disabilities before the California Association of Mental Health Patients
Rights Advocatesand other groups.

With prodigious energy (he still runs marathons) and a passion for public
service, Cohen seems younger than his 70 years. The Brooklyn-born son of a truant officer,
he knew early on that he wanted to work toward improving conditions for vulnerable
populationsparticularly the poor, the elderly, the incarcerated, and persons with
psychiatric disabilities. As a Ford Fellow at Harvard Law School, he first began
representing clients pro bono. Later he served as a trial attorney with the U.S.
Department of Justice and as a consultant to the California Mental Health Association and
California Advocates for Nursing Home Reform. Professor Cohen directed the Constitutional
Law Clinic at the School of Law, which was part of the
Western Center for
Constitutional Rights.

CANHR v. Chapman: Court Order Protects Nursing Home Residents

The Alameda County Superior Court has ruled nursing homes
that give mind-altering drugs and withdraw life-sustaining treatment to
“unrepresented” residents are violating the state constitution and must
stop immediately. The case, CANHR v. Chapman, was brought by
Professor Mort Cohen of Golden Gate University Law School on behalf of
California Advocates for Nursing Home Reform (CANHR) and several nursing
home residents against the California Department of Public Health (DPH).

Since 1992, California nursing homes have used Health and
Safety Code §1418.8, a law allowing nursing homes to make routine
medical decisions for residents who lack mental capacity and do not have
family or other surrogate decision-makers, to drastically limit the
lives and liberty of their residents. DPH has interpreted this law to
permit facilities to tie residents to their beds, force them to take
antipsychotic drugs as chemical restraints, and authorize the withdrawal
of treatment necessary to sustain life.

The Court found Section 1418.8 facially unconstitutional
for its failure to provide residents with any notice they had been
determined “incapacitated” or that medical decisions were being
considered without their input. The Court also held that the state
constitution prohibits nursing homes from drugging residents or
withdrawing life-sustaining treatment without more due process than
Section 1418.8 provides.

According to Professor Cohen, “The judge understood that
what is convenient for nursing homes turns out to be highly intrusive to
residents. This decision recognizes that people do not lose their rights
to life and liberty simply because they live in a nursing home.”

Pat McGinnis, Executive Director of CANHR stated “This is
an amazing victory for nursing home residents and all Californians. The
decision will ensure that residents are protected from poorly considered
treatment and are given the full respect that our constitution affords.”

The Court recognized that its ruling “will likely create
problems in how many skilled nursing facilities operate” but “the court
has considered this burden and weighed it against due process concerns,
and finds that the due process rights of these patients is more
compelling.” [emphasis added]